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13-P-560 Appeals Court

COMMONWEALTH vs. MICHAEL RILEY.

No. 13-P-560.

Norfolk. April 4, 2014. - September 19, 2014.

Present: Graham, Wolohojian, & Milkey, JJ.

Constitutional Law, Public trial. Practice, Criminal, Public 

trial, New trial.

Indictments found and returned in the Superior Court 

Department on September 7, 2005. 

The case was tried before Barbara A. Dortch-Okara, J., and 

a motion for a new trial was considered by her.

Following review by this court, 77 Mass. App. Ct. 1102 

(2010), a motion for a new trial was heard by Kenneth J. 

Fishman, J.

Joanne T. Petito for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the 

Commonwealth.

WOLOHOJIAN, J. The defendant appeals from the denial of 

his motion for new trial, contending that his right to a public 

trial under the Sixth Amendment to the United States 
2

Constitution was violated when a court officer prevented the 

defendant's sister from entering the courtroom because "the 

lawyers were talking to the judge." This occurred on the 

morning of the first day of trial -- but before the trial began. 

The motion judge found that the sister was turned away when the 

court was not in session. Although the parties have asked us to 

determine whether the defendant's Sixth Amendment right was

violated in the circumstances presented, we need not reach that 

question because we determine that, even were we to assume the 

defendant's right was infringed, he has not shown that he is 

entitled to a new trial. We accordingly affirm.

The motion judge, after an evidentiary hearing,1 made the 

following written findings.

"The defendant's case was called for trial on November 

13, 2007. The defendant's sister Ayges, arrived at Dedham 

Superior Court at around 9:00 a.m. on the first day of her 

brother's trial. Ayges went through court security and was 

directed to the courtroom where her brother's trial was to 

take place. When she approached the courtroom, Ayges 

observed that the courtroom door was open. She saw many 

people waiting outside of the courtroom, including one 

person she recognized as the victim's grandmother. When 

 

1 This is the second time that the defendant's motion for 

new trial has come before us. The first time, we vacated the 

order denying the motion and remanded the case for 

reconsideration in light of Commonwealth v. Cohen (No. 1), 456 

Mass. 94 (2010). See Commonwealth v. Riley, 77 Mass. App. Ct. 

1102 (2010). On remand, the motion was denied a second time, 

after a different judge conducted an evidentiary hearing, made 

detailed findings, and undertook a close analysis of the law. 

It is from this second denial of his motion that the defendant 

appeals.
3

Ayges peered into the courtroom, she saw her brother, the 

defendant, and lawyers standing next to the bench, talking 

to the judge. She did not see anyone else in the 

courtroom; it was otherwise empty.[2] Accordingly, the 

defendant's sister did not see a court reporter, any court 

officers, any witnesses, or the defendant's parents in the 

courtroom.

"Moreover, the record reflects that the defendant was 

in custody during the trial. This Court finds based on a 

review of the transcript of proceedings on the morning of 

November 13, 2007, and based on its knowledge of Courtroom 

25 at the Norfolk Superior Courthouse where these 

proceedings were held, as well as its experience with and 

knowledge of the process of hearings in criminal cases, 

that it is highly unlikely that the defendant would be 

standing next to the bench with counsel and the judge 

during the hearing on pretrial motions, and particularly 

without the presence of security officers.

"When Ayges attempted to gain entry into the 

courtroom, she was stopped by a court officer. He asked 

her whether she was a potential juror or witness, to which 

she responded that she was the defendant's sister. The 

court officer told her that she could not enter the 

courtroom because 'the lawyers were talking to the judge.' 

The court officer did not tell Ayges that she would be 

allowed in the courtroom at another time. The defendant 

maintains that the court officer was Larry Sullivan based 

on the description provided by Ayges and Sullivan's general 

assignment to Judge Dortch-Okara. The transcript of 

proceedings reveals that Sullivan was in the courtroom 

during the initial proceedings, and accordingly, could not 

have been the officer with whom Ayges spoke if the court 

 

2 In a footnote, the judge stated: "Ayges did not specify 

how many lawyers she observed in the courtroom in either her 

affidavit or her testimony at the evidentiary hearing. Attorney 

Hernon's affidavit states that Ayges told her that she saw a

lawyer standing at the bench. In addition, although Ayges 

stated that, when she sought entry into the courtroom, the 

courtroom door was open, Chief Court Officer Bellotti testified 

that the courtroom door is typically closed when court is in 

session. This Court credits Ayges' testimony that she made 

observations through an open door, but, for the reasons stated 

herein, [finds] that the court was not in session at the time."
4

were in session. Ayges left the courthouse after the court 

officer denied her entry into the courtroom. She estimated 

spending roughly thirty minutes at the courthouse that 

morning. Once she left, Ayges did not return to the 

courthouse at any point during her brother's trial.

"Attorney Hernon represented the defendant at trial. 

She testified that she did not learn of Ayges' exclusion 

from the courtroom on the morning of November 13, 2007, 

until after the trial concluded. Attorney Hernon first 

learned that Ayges attempted to attend her brother's trial 

during a phone conversation with Ayges on November 28, 

2007. During that conversation, Ayges told Attorney Hernon 

that she went to the courtroom where her brother's trial 

was scheduled to take place, and saw a lawyer standing at 

the judge's bench, whom, based on Ayges' description, 

Attorney Hernon recognized as Assistant District Attorney 

Courtney Linnehan.

"The trial transcript reveals that the first order of 

business on the morning of November 13, 2007, was several 

pretrial motions, including motions in limine. Jury 

empanelment did not begin until later that afternoon, after 

the luncheon recess. Although Ayges states that she did 

not see any spectators in the courtroom when she attempted 

to enter, the trial transcript indicates that the victim's 

parents were present in the courtroom at the onset of the 

Court's consideration of pretrial motions. Indeed, defense 

counsel moved to sequester witnesses before the Court 

addressed the parties' motions in limine, stating on the 

record that witnesses were currently present in the 

courtroom. The Court, however, did not order the witnesses 

to leave the courtroom during the hearing on these nonevidentiary motions. Accordingly, this Court finds that at 

the time the defendant's sister made her observations 

inside Courtroom 25, the court was not in session."

The defendant challenges as clearly erroneous the judge's 

finding that court was not in session when his sister was turned 

away. Essentially, he argues that the court must have been in 

session given the finding that the trial judge was on the bench 

and was speaking to the lawyers with the defendant present. 
5

Because it is clear that the motion judge credited the sister's 

testimony that the judge was on the bench and talking to the 

lawyers, there would be some tension if one were to read the 

phrase "not in session" to mean that nothing at all was 

occurring in court. However, looking at the findings as a 

whole, as well as the evidence upon which they are based, we 

think it unreasonable to conclude that the judge meant the 

phrase in that way. Instead, consistent with his other 

findings, it is apparent that the judge used the phrase "not in 

session" to mean that the discussion with counsel took place 

before the pretrial motion hearing began and was administrative 

in nature, with no transcript or reporter being required.3

Where, as here, a judge's findings of fact are made after 

an evidentiary hearing on a motion for new trial, they "will be 

accepted if supported by the record." Commonwealth v. Rosario, 

460 Mass. 181, 195 (2011), quoting from Commonwealth v. Walker, 

443 Mass. 213, 224 (2005). See Commonwealth v. Buckman, 461 

Mass. 24, 29 (2011), citing Commonwealth v. Cohen (No. 1), 456 

Mass. 94, 105 (2010) (Cohen [No. 1]). The judge's finding is 

fully supported here. The sister testified that no one was 

 

3 Although there is no indication in the record as to what 

the discussion might have concerned, it is certainly not unusual 

for a judge to discuss a matter of timing (for example, the 

timing of the arrival of the clerk or the reporter) without the 

court being in session.
6

present in the courtroom other than the two lawyers, the 

defendant, and the judge. The lawyers were standing at sidebar

with the defendant standing behind them to the side. By

contrast, the transcript of the hearing on the motions in limine 

reveals that witnesses and court personnel were present in the 

courtroom and that the argument took place in open court, not at 

sidebar.

Regardless of whether the defendant's sister was turned 

away during the pretrial motion hearing (as the defendant 

contends) or during a sidebar conference before the motion 

hearing began (as the judge found), the defendant has not shown 

that the proceeding was of a nature to which the Sixth Amendment 

public trial right attaches. Although the United States Supreme 

Court has held that the Sixth Amendment right extends to certain 

pretrial proceedings, see Waller v. Georgia, 467 U.S. 39, 43

(1984) (Waller) (suppression hearings), and Presley v. Georgia, 

558 U.S. 209, 213 (2010) (jury voir dire), it has not held that 

it attaches to all pretrial proceedings.

4 To determine whether a 

 

4 Only a few Federal appellate decisions have considered the 

issue. See Rovinsky v. McKaskle, 722 F.2d 197, 199-201 (5th 

Cir. 1984) (Sixth Amendment right attaches to hearings on 

motions in limine heard during course of trial); United States

v. Norris, 780 F.2d 1207, 1209-1211 (5th Cir. 1986) (Sixth 

Amendment right does not attach to bench and lobby conferences 

concerning administrative matters); United States v. VazquezBotet, 532 F.3d 37, 51-52 (1st Cir. 2008) (looking to its 

purpose and function, no Sixth Amendment public trial right to 

pretrial offer-of-proof hearing at issue); United States v. 
7

particular pretrial proceeding is one to which the Sixth 

Amendment public trial right attaches, the inquiry "cannot be 

resolved solely on the label we give the event" but rather must 

be based on "considerations of experience and logic." PressEnterprise Co. v. Superior Ct., 478 U.S. 1, 7, 9 (1986). 

"First, because a 'tradition of accessibility implies the 

favorable judgment of experience,' we [are to consider] whether 

the place and process have historically been open to the press 

and general public. . . . Second, [we are to consider] whether 

public access plays a significant positive role in the 

functioning of the particular process in question." Id. at 8 

(citations omitted).5

Even were we to assume that the Sixth Amendment public 

trial right attached in the circumstances presented and that the 

partial closure did not satisfy the four-part Waller test,

6 the 

 

Waters, 627 F.3d 345, 359-361 (9th Cir. 2010) (public trial 

right attaches to hearing on motions in limine).

5 Press-Enterprise Co. v. Superior Ct., supra, is a public 

access case based on the First Amendment to the United States 

Constitution. However, the United States Supreme Court has 

stated that "there can be little doubt that the explicit Sixth 

Amendment right of the accused is no less protective of a public 

trial than the implicit First Amendment right of the press and 

public," Waller, supra at 46, and has held that under the Sixth 

Amendment any closure must meet the tests set out in PressEnterprise Co. Id. at 47.

6 "[T]he right to an open trial may give way in certain 

cases to other rights or interests, such as the defendant's 

right to a fair trial or the government's interest in inhibiting 
8

defendant's motion for new trial was nonetheless properly denied 

because he has not shown that the appropriate remedy would be a 

new trial. "The relief for a breach of the public trial right 

'should be appropriate to the violation.'" Cohen (No. 1), 456 

Mass. at 119, quoting from Waller, 467 U.S. at 50.

We have found no case where a new trial has been ordered 

where the unconstitutional closure occurred solely during a 

pretrial motion hearing.

7 Instead, possible remedies are either 

to conduct a new public hearing on the motion or to publicly 

release the transcript of the hearing. See Waller, supra at 49-

50 (remanding for public suppression hearing on those portions 

of hearing that need not be closed); United States v. Waters, 

627 F.3d 345, 361 (9th Cir. 2010) (noting public trial right may 

 

disclosure of sensitive information. Such circumstances will be 

rare, however, and the balance of interests must be struck with 

special care." Waller, 467 U.S. at 45. "That 'determination 

must satisfy four requirements articulated by the Supreme Court: 

"[1] the party seeking to close the hearing must advance an 

overriding interest that is likely to be prejudiced, [2] the 

closure must be no broader than necessary to protect that 

interest, [3] the trial court must consider reasonable 

alternatives to closing the proceeding, and [4] it must make 

findings adequate to support the closure."'" Cohen (No. 1), 456 

Mass. at 107, quoting from Commonwealth v. Martin, 417 Mass. 

187, 194 (1994).

7 In Washington v. Heath, 150 Wash. App. 121, 128-129

(2009), the court reversed the defendant's convictions because 

the courtroom was closed for certain motions in limine as well 

portions of jury voir dire. In Rovinsky v. McKaskle, 722 F.2d 

197, 199 (5th Cir. 1984), convictions were reversed where 

motions in limine, although filed pretrial, were heard in 

chambers during trial.
9

have been vindicated by public availability of transcript). See 

also Robinson v. Commonwealth, 445 Mass. 280,290 (2005) (if 

defendant had good cause to be absent from suppression hearing 

and did not waive right to be present, remedy may be to hold 

another suppression hearing). Although relief need not 

necessarily be limited to those two options, it must be tailored 

to remedy the harm. A new trial should not be ordered where it 

"would be a windfall for the defendant, and not in the public 

interest." Waller, supra at 50.

Here, the defendant expressly disclaims any relief other 

than a new trial. Even if -- as he contends -- the closure 

occurred during the hearing on the motions in limine, he has 

made no effort to show why a new trial would be the appropriate 

form of relief. For these reasons, we affirm the denial of the 

defendant's motion for new trial.

So ordered.